Government sees new need for abortion ruling
on Feb 14, 2006 at 8:44 pm
The Bush Administration urged the Supreme Court on Tuesday to move ahead with a final ruling on the constitutionality of the controversial federal ban on “partial-birth abortions,” arguing that there would be no value in sending a pending case back to a lower court for another look. It cautioned against any action by the Justices that would “unduly postpone the ultimate resolution of the extraordinarily important question” of the constitutionality of the ban enacted in 2003. The new filing can be found here.
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The Court is scheduled to consider the case of Gonzales v. Carhart (05-380) at its private Conference on Friday, according to the Court’s electronic docket. The Court had examined that case at a Conference Jan. 20, but took no action on it at that time. That may have been based on a desire to have the case come up after the new Justice, Samuel A. Alito, Jr., had joined the Court.
Since the government filed its appeal in the Carhart case, challenging an Eighth Circuit Court decision nullifying the so-called “Partial-Birth Abortion Ban Act of 2003,” there have been three significant new developments. It was those developments that prompted the Justice Department to file a new brief Tuesday. The first was the Court’s Jan. 18 ruling sending a New Hampshire abortion case back to a lower court to consider a possible narrower ruling against that state’s law requiring parental notice of a teenager’s abortion. In that ruling (Ayotte v. Planned Parenthood), the Court seemed to indicate that it was changing course against pre-enforcement, total nullification of new abortion restrictions, in favor of more focused remedies for invalid laws.
In the Justice Department’s new filing, it argued that the New Hampshire decision “does not shed any light on the threshold question presented in this case concerning the constitutionality” of the partial-birth abortion ban. The Court should not send the Carhart case back to the Eighth Circuit in light of the Jan. 18 decision, the Department contended, because the question of remedy would not even arise regarding the federal ban unless it were first struck down — wholly or partly — as unconstitutional.
Other new developments affecting the federal ban, of course, were the rulings by two more federal appeals courts — the 2d and the 9th Circuit Courts — on Jan. 31, striking down the partial-birth abortion ban in decisions somewhat different in scope and rationale.
Those new decisions, the Department argued Tuesday, “confirm that the Court” should agree now to hear the Carhart case, to resolve definitively the constitutionality of the federal ban. That case, it said, “is an attractive vehicle for consideration of the Act’s constitutionality.” Granting review of it, the Department added, would allow the Court to consider and decide “all of the principal issues concerning” constitutionality.
